Win, Lose, or Law... The Justices of the US Supreme Court

The US Supreme Court is likely better known to readers than any other court on the planet. Its hyper-politicised confirmation hearings, nation-changing judgments, and larger-than-life characters have thrown the Court to the forefront of national and international news and consciousness. Whereas in the UK, gay marriage could be attributed to the support of the Prime Minister David Cameron and his coalition partners in the Liberal Democrats, in the US, it is attributed to the Court's 'liberal' wing and the swing-Justice Kennedy - just one example of the difference between the two systems.

Nevertheless, whilst Justices Ruth Bader Ginsburg and Brett Kavanaugh may have captured your attention, there are still seven more judges on the Court that you need to know. To illustrate their approach to constitutional interpretation, I have included a very brief analysis of their positions on four key issues: abortion rights, LGBTQ+ rights, executive power, and campaign finance reform.

Chief Justice John Roberts

Serving on the Court since 2005, Roberts graduated Harvard with a history major, and then Harvard Law. He clerked on the Circuit Court, and then the Supreme Court, before working in the Department of Justice for Presidents Reagan and George H W Bush. Roberts spent 14 years in private practice, arguing 39 cases before the Supreme Court, before being appointed to the DC Circuit Court of Appeal in 2003 - a seat often seen as a stepping stone to the Supreme Court. 

Roberts is a conservative justice, and adheres to a strict constructionist interpretation of the Constitution, but is now seen as the 'swing-judge' on the Court since the appointment of Kavanaugh. 

• In terms of abortion rights, Roberts has not indicated he believes Roe v Wade should be reversed, as he didn't join Thomas's opinion in Stenberg v Carhart. 
• Roberts has been consistently opposed to LGBTQ+ rights, dissenting in US v Windsor and Obergefell v Hodges. 
• In keeping with his conservative principles, Roberts tends to favour states' rights over a strong federal government, and has been a vocal critic of President Trump's politicisation of the judiciary. 
• Roberts sees limits on campaign donations as a violation of the First Amendment, as seen in McCutcheon v Federal Election Commission. 

Clarence Thomas

Serving on the Court since 1991, Thomas studied English Literature at Holy Cross, and then law at Yale. He served as an Assistant Attorney General in Georgia, a legislative assistant to Senator Danforth, Assistant Secretary for Civil Rights at the US Department of Educaiton, and Chairman of the Equal Employment Opportunity Commission, and also has experience in the private sector. 

He was nominated to the DC Circuit CA in 1990, and his nomination to the Supreme Court a year later was marred by the issue of whether he had sexually harassed Anita Hill, an attorney at the Department of Education and the EEOC. Thomas is still haunted by this issue, which received another intense review during Kavanaugh's nomination. 

Thomas is arguably the most conservative member of the Court, and is a strict constructionist. 

• Thomas consistently advocates for the repeal of Roe v Wade and Casey v Planned Parenthood, and doesn't believe that the Constitution addresses the issue of abortion. 
• In relation to LGBTQ+ rights, Thomas has a mixed record. He has described anti-sodomy laws as "uncommonly silly" but has upheld them due to his belief the Constitution doesn't grant a right to privacy. Whilst upholding anti-discrimination laws in Romer v Evans, he then dissented in Obergefell v Hodges. 
• Interestingly for a conservative justice, Thomas appears deferential to executive power. In relation to Guantanamo Bay, Thomas has consistently supported the right of the Presidency to maintain the site in Hamdi v Rumsfeld and Hamdan v Rumsfeld. 
• Thomas is a strong believer in the First Amendment, and, consequently, has voted against anything which could be construed as a limit on freedom of expression, including campaign contribution limits. 

Ruth Bader Ginsburg 

Arguably the most famous of the Justices, Ginsburg has seen her popularity soar thanks to her fiery dissents, the 'Notorious R.B.G' meme, and the award-winning documentaries and films produced about her career. Serving since 1993, Ginsburg was initially seen as a cautious and moderate figure. She graduated with a major in Government from Cornell, and studied law at Harvard and Columbia. She clerked for Palmieri after her law professor threatened never to recommend another Columbia student to Palmieri if he did not hire Ginsburg, and consequently taught at both Rutgers and Columbia law schools, as well as Stanford. 

Ginsburg cofounded the Women's Rights Project at the ACLU, arguing six gender discrimination cases before the Supreme Court, and winning all but one of them. She served on the DC Circuit CA for 13 years. 

Ginsburg is now known for her unashamed liberalism, but previously had been a more moderate member of the Court. She is eager to maintain a respect for precedent, and often looks to foreign law for guidance on jurisprudence. 

• She believes the government has no role in the regulation of women's bodies, and has voted against the partial-birth abortion ban in Gonzales v Carhart.
• In line with her opposition to gender discrimination, Ginsburg has been broadly supportive of LGBTQ+ rights.
• Ginsburg defers largely to the executive, such as in Sebelius, although is keen to base her arguments on precedent. 
• Her voting record suggests she does not equate freedom of expression with political donations, and has supported restrictions on campaign financing. 

Stephen Breyer 

In my opinion, Breyer is one of the most underrated members of the Court. Serving since 1994, Breyer studied philosophy at Stanford, PPE at Oxford, and law at Harvard before clerking on the Supreme Court. He worked in the Department of Justice's anti-trust division, and then for the Watergate Special Prosecutor before working as Special Counsel for the Senate Judiciary Committee. Breyer also taught law at Harvard before being appointed to the First Circuit CA in 1980. 

Breyer's main aim is to make the law more sensible, and takes a purposive approach to constitutional interpretation. 

• Breyer has voted generally in favour of abortion rights, and is broadly supportive of LGBTQ+ rights. 
• Whilst other liberal justices are largely deferential to executive power, Breyer instead defers to Congress, and has voted less than any other Justice to overturn congressional legislation. 
• Breyer dissented in Citizens United, and believes the judiciary should make more efforts to encourage popular participation in the political system.

Samuel Alito 

Appointed in 2006, Alito had studied international policy at Princeton, and law at Yale. He clerked for the Third Circuit CA, and has had an impressive career as Assistant US Attorney for NJ, assistant to the US solicitor general, Deputy Assistant attorney general, and as a professor at Seton Hall and Duke universities. Alito also served on the Third Circuit CA. 

Alito is a conservative originalist. 

• On the Court of Appeal, Alito has voted against abortion rights. 
• Despite supporting the repeal of anti-sodomy laws in his youth (due to his belief in the right to privacy), Alito has voted against LGBTQ+ rights on the Supreme Court. 
• Alito's nomination was formally opposed by the ACLU due to his deferential attitude towards executive power, particularly in relation to surveillance.
• Whilst Alito tends to oppose campaign finance restrictions, he construes statutes narrowly, and is hesitant to take into account prior legislation when forming a judgment. 

Sonia Sotomayor 

Sotomayor has served on the Court since 2009 after studying history at Princeton and law at Yale. A comparatively short career in the law, she served as Assistant DA in New York before entering private practice. She also served on the US District Court for the Southern District of New York and on the Second Circuit CA. 

Sotomayor is largely liberal, and had a contentious confirmation hearing due to her comments on race. 

• She is broadly supportive of abortion rights, but upheld the 'Mexico City Policy' during her time on the CA, saying that it is the government's prerogative to adopt a pro-life stance and use public funds to that end. 
• Sotomayor has been largely supportive of LGBTQ+ rights. 
• Whilst being largely deferential to executive power in cases such as Sebelius, Sotomayor is far more activist in cases relating to immigration. 
• Sotomayor dissented in Citizens United. 

Elena Kagan 

Serving since 2010, Kagan studied history at Princeton and law at Harvard before clerking for the DC Circuit CA and for Thurgood Marshall on the USSC. Kagan worked in private practice and in government before lecturing at Chicago and Harvard, where she later became Dean of the Law School. Kagan was appointed Solicitor General in 2009, and argued Citizens United before the Court. 

• Kagan is largely supportive of abortion rights. 
• As Dean of Harvard Law, Kagan protested against the 'Don't Ask, Don't Tell' policy of the US military, and has been supportive of LGBTQ+ rights during her time on the Court. 
• Kagan's approach to executive power has been interesting, with her tendency to cross ideological lines making it hard to discern a direct principle. 
• As Solicitor General, Kagan argued against Citizens United, and this can be taken as evidence of her support for campaign finance reform. 

Neil Gorsuch

An enigmatic figure who is often underestimated, Gorsuch was Trump's first nominee in 2017. He studied political science at Columbia, law at Harvard, and philosophy at Oxford under the guidance of the eminent theorist Finnis. Gorsuch clerked on the DC Circuit CA and the Supreme Court before entering private practice. He also served as Principal Deputy to the Associate Attorney General and on the Tenth Circuit CA before his nomination to the Court. 

Gorsuch is an originalist, and adopts a 'natural law' approach to the Constitution, making him unafraid to cross ideological lines, and often can be seen siding with the Court's liberal wing in surprising cases. 

• He has largely opposed abortion and LGBTQ+ rights. 
• As a conservative, Gorsuch tends to favour state power over a strong federal executive. 
• He opposed campaign finance restrictions as a CA judge. 

Brett Kavanaugh

The most junior of the Justices on the Court, Kavanaugh has served since 2018 after studying history and law at Yale. He clerked on the Third Circuit CA, the Ninth Circuit CA, and the Supreme Court, before working for Ken Starr as an associate counsel. After a while in private practice, Kavanaugh was appointed to the DC Circuit CA.

His confirmation hearings were extremely controversial, due to the allegations of sexual assault by multiple women, including Dr Blasey Ford. These hearings also revealed Kavanaugh to be conservative and highly partisan, with pointed attacks at the Democrats on the panel, as well as Hillary Clinton. 

• Kavanaugh has been largely opposed to abortion rights, but has thus far deferred to precedent. 
• There is little case law on his approach to LGBTQ+ rights, but he is likely to oppose them. 
• Likely one of the key reasons for his appointment to the Court was his deferential approach to the office of the Presidency. 
• Kavanaugh has supported limits on campaign donations whilst on the CA. 

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